Comments on: Our Constitution and the Consensus Gentium

By: Michael PS

Michael PS — Thu, 09 Feb 2012 09:32:19 +0000

Peter

The Romans did not regard their law as a machine, but as a branch of ethics

“Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere.
[Dig.1.1.10.1 Ulpianus 1 reg..]” – “These are the precepts of the law: to live uprightly, not to harm another, to give to each his due”

Jurisprudence was “iusti atque iniusti scientia. Dig.1.1.10.2 Ulpianus 1 reg. ] – “The science of the just and the unjust.”

By: Peter

Peter — Wed, 08 Feb 2012 22:09:59 +0000

Likening the Constitution to an operating system is troubling in the implication of law as algorithm and citizens as data; data that falls outside the realm of the algorithm is discarded.

I understand the Romans viewed their legal system as a machine, is this so different?

Rather than data I’d class citizens and commerce/civil society as “application software”. But as has already been said, the analogy does have its limits.

By: Blake

Blake — Wed, 08 Feb 2012 18:58:29 +0000

A few rights aren’t of much relevance anymore (i.e. quartering soldiers in people’s homes?)

So if the government found it convenient to quarter soldiers in your home, you wouldn’t object?

Or do you think the government no longer could have any reason or motive for wishing to do so?

By: Raymond Takashi Swenson

Raymond Takashi Swenson — Wed, 08 Feb 2012 12:54:56 +0000

I lay much of the blame for the misconception of the Supreme Court as the czar over the other, democratic branches of government to the way in which the influential Brown v. Board of Education decision was explained. In its earlier decisions which upheld the notion of “separate but equal”, the Court was endorsing a lie, because whenever one segment of society has the power to separate off another part, the two parts are per se unequal. But rather than confess its sins, the Court claimed that it was acting as a discretionary manager of the meaning of the Constitution, seeing that its former version did not work out in practice and so making a policy switch based on its own pragmatic judgment rather than the clear words and known historical intent of the Fourteenth Amendment. It thus laid the foundation for the Court to claim the power to find more and more authority for itself and less for elected officers accountable to the voters, creating zombies like Roe v Wade that cannot be killed by normal rational human effort. This is building to a climax in which the Courts will order states to recognize a “right” to gay marriage, and some will refuse, leading to the crippling of state power or of the power of the courts, which ultimately rely on the willingness of Congress and the President to go along for the ride in the Court’s new Constitution-mobile.

By: Raymond Takashi Swenson

Raymond Takashi Swenson — Wed, 08 Feb 2012 12:35:57 +0000

The right to travel throughout the United States, and just as importantly the right to move goods and services without hindrance, was the entire motive for creating the Fedetal government, which took from the states the power to restrict such movement via the interstate commerce clause, Article I, Section 8.

The most important freedoms protected by the Constitution are not those embodied in the Bill of rights, but the combination of representative government, the power to elect and NOT elect legislatures and executive officers, and the emphasis on enumerated powers rather than unconstrained discretion. The major sin of modern Federal courts is that, while they purport to be expanding the “rights” of Americans, they are depriving us incrementally of the most fundamental right granted there, the right to govern ourselves and create the laws that govern us, even revoking laws found to be unwise. The end run around the legislative process taken by modern courts has taken power into the courts and away from the people, creating tensions that get expressed in every new election, even though they can never be dissipated through the normal process of legislative compromise.

Promising “rights” to economic benefits actually decreases freedom, because the only way government can provide them is by taking them from others, with a large handling and shipping fee thrown in.

By: Michael PS

Michael PS — Wed, 08 Feb 2012 09:45:42 +0000

I believe that what Portalis said of the Civil code is especially applicable to constitutions: -
“A host of things are necessarily left to usage, to the discussion of men learned in the law, to the decision of judges….The function of statutory law is to fix, in broad lines, the general maxims of the law, to establish principles that will be fecund in consequences, and not to descend to the details of questions that may arise in each subject. It is for the judge and the jurist, imbued with the general spirit of the laws, to direct their applications.” I

By: Boonton

Boonton — Wed, 08 Feb 2012 02:01:49 +0000

A few rights aren’t of much relevance anymore (i.e. quartering soldiers in people’s homes?) What makes the Constitution work is many rights are implied and assumed to exist.

For example, ‘innocent until proven guilty’ is not actually found in the Constitution but it is presumed to be part of due process which was inherited from Common Law. A right to due process, which is explicitly protected, implies assuming guilt before proof is forbidden. A ‘right to travel’ likewise would probably fall under multiple provisions. And, of course, the right to privacy.

By: pentamom

pentamom — Wed, 08 Feb 2012 01:53:48 +0000

That might just be taking the analogy where it was never meant to go, SteveP.

By: Carson Chittom

Carson Chittom — Wed, 08 Feb 2012 01:46:06 +0000

@Peter:
Posting this from my OpenBSD desktop, I like your metaphor, and I concur.

By: SteveP

SteveP — Wed, 08 Feb 2012 00:36:55 +0000

Likening the Constitution to an operating system is troubling in the implication of law as algorithm and citizens as data; data that falls outside the realm of the algorithm is discarded. While I understand the seductive utility of such a view it seems to me to strip a citizen of their independent agency.